FOR THE FOURTH CIRCUIT(AFL-CIO), Robert M. Bastress, Jr., Margaret L. Workman, and Menis E. Ketchum...

PUBLISHED

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

CENTER FOR INDIVIDUAL FREEDOM,INCORPORATED; WEST

VIRGINIANS FOR LIFE,INCORPORATED; ZANE LAWHORN,

Plaintiffs-Appellees,

v.

NATALIE H. TENNANT, Secretary ofthe State of West Virginia and asa member of the West VirginiaState Election Commission; GARY

COLLIAS; WILLIAM N. RENZELLI; No. 11-1952ROBERT RUPP; CINDY SMITH, intheir official capacities asmembers of the West VirginiaState Election Commission; SCOTT

ASH, Prosecuting Attorney forMercer County, as a representativeof the class of ProsecutingAttorneys in the State of WestVirginia,

Defendants-Appellants,

and

WEST VIRGINIA EDUCATION

ASSOCIATION; WEST VIRGINIA

AMERICAN FEDERATION OF

LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS; BOB

BASTRESS; MARGARET L. WORKMAN;MENIS ELBERT KETCHUM,

Intervenors/Defendants.

BRENNAN CENTER FOR JUSTICE AT

NYU SCHOOL OF LAW; OHIO

VALLEY ENVIRONMENTAL COALITION;WEST VIRGINIA CITIZENS FOR CLEAN

ELECTIONS; LEAGUE OF WOMEN

VOTERS OF WEST VIRGINIA; WEST

VIRGINIA CITIZEN ACTION GROUP,

Amici Supporting Appellants.

CENTER FOR INDIVIDUAL FREEDOM,INCORPORATED,

Plaintiff-Appellant,

andNo. 11-1993

WEST VIRGINIANS FOR LIFE,INCORPORATED; ZANE LAWHORN,

Plaintiffs,

v.

2 CENTER FOR INDIVIDUAL FREEDOM v. TENNANT

NATALIE H. TENNANT, Secretary ofthe State of West Virginia and asa member of the West VirginiaState Election Commission; GARY

COLLIAS; WILLIAM N. RENZELLI;ROBERT RUPP; CINDY SMITH, intheir official capacities asmembers of the West VirginiaState Election Commission; SCOTT

ASH, Prosecuting Attorney forMercer County, as a representativeof the class of ProsecutingAttorneys in the State of WestVirginia,

Defendants-Appellees,

and

WEST VIRGINIA EDUCATION

ASSOCIATION; WEST VIRGINIA

AMERICAN FEDERATION OF

LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS; BOB

BASTRESS; MARGARET L. WORKMAN;MENIS ELBERT KETCHUM,

Intervenors/Defendants.

3CENTER FOR INDIVIDUAL FREEDOM v. TENNANT

BRENNAN CENTER FOR JUSTICE AT

NYU SCHOOL OF LAW; OHIO

VALLEY ENVIRONMENTAL COALITION;WEST VIRGINIA CITIZENS FOR CLEAN ELECTIONS; LEAGUE OF WOMEN

VOTERS OF WEST VIRGINIA; WEST

VIRGINIA CITIZEN ACTION GROUP,

Amici Supporting Appellees. Appeals from the United States District Court

for the Southern District of West Virginia, at Bluefield.Thomas E. Johnston, District Judge.

(1:08-cv-00190; 1:08-cv-01133)

Argued: October 23, 2012

Decided: January 18, 2013

Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.

Affirmed in part, reversed in part, and remanded by publishedopinion. Judge Floyd wrote the opinion, in which Judge Motzand Judge Duncan joined.

COUNSEL

ARGUED: Anthony J. Majestro, POWELL & MAJESTRO,PLLC, Charleston, West Virginia, for Natalie H. Tennant,Gary Collias, William N. Renzelli, Robert Rupp, CindySmith, and Scott Ash. James Bopp, Jr., THE BOPP LAWFIRM, Terre Haute, Indiana; Thomas W. Kirby, WILEYREIN, LLP, Washington, D.C., for Center for Individual


Freedom, Incorporated, West Virginians for Life, Incorpo-rated, and Zane Lawhorn. ON BRIEF: Silas B. Taylor,Senior Deputy Attorney General, OFFICE OF THE ATTOR-NEY GENERAL OF WEST VIRGINIA, Charleston, WestVirginia, for Natalie H. Tennant, Gary Collias, William N.Renzelli, Robert Rupp, and Cindy Smith; Nicholas S. Preser-vati, Charleston, West Virginia, for Scott Ash. Andrew G.Woodson, WILEY REIN, LLP, Washington, D.C., for Centerfor Individual Freedom, Incorporated. Randy Elf, JAMESMADISON CENTER FOR FREE SPEECH, Terre Haute,Indiana, for West Virginians for Life, Incorporated, and ZaneLawhorn. David S. Turetsky, Mark Walsh, J. Porter Wiseman,DEWEY & LEBOEUF LLP, Washington, D.C.; Mark Ladov,Mimi Marziani, Adam Skaggs, David Earley, THE BREN-NAN CENTER FOR JUSTICE AT NYU, New York, NewYork, for Amici Curiae.

OPINION

FLOYD, Circuit Judge:

The First Amendment provides that "Congress shall makeno law . . . abridging the freedom of speech." U.S. Const.amend. I. In its now-famous Citizens United v. FEC decision,the Supreme Court recognized that the First Amendment "hasits fullest and most urgent application to speech uttered duringa campaign for political office." 130 S. Ct. 876, 898 (2010)(quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S.214, 223 (1989)) (internal quotation marks omitted). How-ever, at the same time, the Supreme Court has emphasized theimportance of providing the electorate with information aboutthe source of campaign spending—even when these disclo-sure requirements burden election-related speech. See, e.g.,McConnell v. FEC, 540 U.S. 93, 196 (2003), overruled onother grounds by Citizens United, 130 S. Ct. 876; Buckley v.Valeo, 424 U.S. 1, 64, 66-67 (1976) (per curiam). In this case,


we confront the delicate balance between protecting politicalspeech and informing the electorate about the organizationsthat bankroll modern elections. Specifically, we considerwhether West Virginia’s campaign-finance reporting and dis-claimer requirements can survive constitutional scrutiny.

Appellee and Cross-Appellant Center for Individual Free-dom (CFIF) and Appellee West Virginians for Life (WVFL)are § 501(c)(4) organizations that engage in election-relatedspeech. These organizations and Zane Lawhorn1—a West Vir-ginia resident who wishes to receive WVFL’s communica-tions—brought suit against West Virginia’s secretary of state,members of the West Virginia State Election Commission,and a class of West Virginia’s prosecuting attorneys, allegingthat West Virginia’s campaign finance statutes were constitu-tionally impermissible. The district court struck down some ofthe provisions and upheld other portions of the statutoryscheme, and both West Virginia2 and CFIF appealed. We nowaffirm in part, reverse in part, and remand for further proceed-ings consistent with this opinion.

I.

A.

Following the 2004 election, the West Virginia legislatureacted to strengthen the state’s election statutes due to an "ex-plosion of expenditures by groups independent of candidates."These new laws required organizations to file reports with theWest Virginia secretary of state and include disclaimers ontheir communications when they made certain election-relatedexpenditures and engaged in campaign-related speech. CFIFand WVFL filed separate challenges to the new laws, alleging

1For purposes of this opinion, we refer to WVFL and Lawhorn collec-tively as "WVFL."

2We refer to this case’s Defendants, Appellants, and Cross-Appellees as"West Virginia" for ease of reference.


that they feared prosecution under the statutes because theydisseminated communications that fell within the laws’ scopebut were unwilling to disclose the sources of their contribu-tions.

CFIF’s mission "is to protect and defend individual free-doms and individual rights guaranteed by the U.S. Constitu-tion." CFIF plans to use broadcast media, print media, andtelephone banks "to speak to the public in the Southern Dis-trict of West Virginia on matters of litigation reform andrelated justice issues, including criminal law enforcement andsentencing, legal reform, and judicial decision-making." Tothis end, CFIF will "refer to West Virginia candidates to illus-trate its points and ask members of the public to contact thecandidates and petition them to take or maintain certain posi-tions." WVFL, in turn, aims "to present information uponwhich individuals and the general public may make informeddecisions about such topics as fetal development, abortion andits alternatives, and euthanasia." To further this purpose,"WVFL has distributed candidate-comparison fliers, placedcandidate comparisons in ads for newspaper and television aswell as on the Internet, and issued petitions and mailings." Insum, both CFIF and WVFL engage in election-related speechto promote their organizational goals.

B.

CFIF filed its initial complaint against Betty Ireland3

—West Virginia’s secretary of state—and a class of WestVirginia’s prosecuting attorneys on March 21, 2008, challeng-ing West Virginia’s reporting and disclaimer requirements for(1) expenses associated with "advocating or opposing thenomination, election or defeat of any candidate;" (2) expendi-tures "in support of or opposition to the nomination or elec-

3In 2009, Appellant and Cross-Appellee Natalie Tennant replaced for-mer Defendant Betty Ireland as West Virginia’s secretary of state. The dis-trict court substituted Tennant for Ireland on January 19, 2009.


tion" of a candidate; and (3) "electioneering communication."By order, the district court permitted the West Virginia Edu-cation Association (WVEA), the West Virginia AmericanFederation of Labor and Congress of Industrial Organizations(AFL-CIO), Robert M. Bastress, Jr., Margaret L. Workman,and Menis E. Ketchum to intervene as defendants. The WestVirginia AFL-CIO and WVEA intervened due to their "con-crete interests, distinct from those of other parties, in uphold-ing the West Virginia campaign finance provisions at issue."Bastress, Workman, and Ketchum were each seeking nomina-tion for election to a seat on the West Virginia Supreme Courtof Appeals and alleged that CFIF had targeted them throughits communications.

On April 22, 2008, the district court entered an injunctionpreventing West Virginia from applying the campaign financestatutes to "anything other than communications thatexpressly advocate the election or defeat of a clearly identi-fied candidate" and restricting the definition of "electioneer-ing communication" to certain broadcast media. Ctr. forIndividual Freedom, Inc. v. Ireland (CFIF I), No. 1:08-00190,2008 WL 1837324, at *7 (S.D. W. Va. Apr. 22, 2008).Shortly thereafter, the West Virginia legislature amended thecode sections that were the subject of the injunction, and WestVirginia moved to dissolve the injunction, arguing that theamendments rendered it moot. The district court granted WestVirginia’s motion and directed CFIF to seek a new injunctionbased on the amended language.

On September 30, 2008, WVFL filed its verified complaintand motion for a preliminary injunction raising challenges tothe amended statutory provisions. Specifically, WVFL chal-lenged the statutory scheme’s reporting requirements and itsdefinitions of "electioneering communication" and "expresslyadvocating." Less than a week later, CFIF filed a motion fora preliminary injunction and challenged many of the sameprovisions, and the district court consolidated the two cases:Center for Individual Freedom, Inc. v. Ireland, No. 1:08-cv-


00190, and West Virginians for Life, Inc. v. Ireland, No. 1:08-cv-0113. The district court issued its memorandum opinionand order regarding the preliminary injunction motions onOctober 17, 2008, and released its amended opinion and orderon February 12, 2009. Notably, the district court held that (1)West Virginia’s definition of "expressly advocating" wasvague and (2) its definition of "electioneering communica-tion" was overbroad because it applied to more media than thedefinition that appears in the federal Bipartisan CampaignReform Act (BCRA), which—unlike West Virginia’s then-existing definition—includes only broadcast media. The courttherefore granted CFIF’s and WVFL’s requests for prelimi-nary injunctions with respect to those provisions. See Ctr. forIndividual Freedom, Inc. v. Ireland (CFIF II), 613 F. Supp.2d 777, 790-92, 800-01 (S.D. W. Va. 2009).

After the district court ruled on their preliminary injunctionmotions, both CFIF and WVFL moved for summary judg-ment. However, due to pending petitions for rehearing enbanc and a writ of certiorari in The Real Truth About Obama,Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009), the district courtgranted WVFL’s motion to stay the case on September 16,2009. The Supreme Court ultimately granted the certioraripetition, vacated this Court’s decision in Real Truth, andremanded the case in light of Citizens United, see The RealTruth About Obama, Inc. v. FEC, 130 S. Ct. 2371 (2010),causing the district court to dissolve the stay on May 26,2010.

C.

In 2010, West Virginia’s legislature amended the provi-sions at issue in this case for a second time. The amendmentswent into effect on June 11, 2010, and concerned West Vir-ginia Code section 3-8-1, which states the purposes of thelaw; section 3-8-1a, which includes the definitions of "elec-tioneering communication" and "expressly advocating"; andsection 3-8-2, which lays out the requirements for reporting


election-related spending that is not coordinated with a candi-date or political party, also known as independent expendi-tures. Presumably to more closely comport with the October2008 preliminary injunction order,4 the West Virginia legisla-ture removed direct mailings, telephone banks, and billboardadvertising from the "electioneering communication" defini-tion. See W. Va. Code § 3-8-1a(11)(A). In relevant part, thelatest version of the statute requires individuals and organiza-tions to (1) file reports with West Virginia’s secretary of stateif they make independent expenditures of a certain amount,id. § 3-8-2(b)(1), (c)(1)-(2), (d)(1)-(2); (2) file reports withWest Virginia’s secretary of state if they engage in election-eering communication, which "means any paid communica-tion made by broadcast, cable or satellite signal, or publishedin any newspaper, magazine or other periodical," id. §§ 3-8-1a(11)(A), 3-9-2b(a)(1)-(2); and (3) include disclaimers onelectioneering communications and communications financedby independent expenditures identifying the individuals mak-ing the expenditure and indicating that a candidate or candi-date’s committee did not authorize the communication, id.§§ 3-8-2(2), 3-8-2b(e).

CFIF filed a renewed motion for summary judgment onSeptember 14, 2010, and WVFL filed a second motion forsummary judgment on the same day. Both organizations con-tended that the amendments failed to remedy the constitu-tional defects in the campaign finance regime. On August 3,2011, the district court granted in part and denied in part theirmotions for summary judgment. See Ctr. for Individual Free-dom, Inc. v. Tennant (CFIF III), 849 F. Supp. 2d 659 (S.D.W. Va. 2011). In its opinion, the district court came to the fol-lowing pertinent conclusions:

4The West Virginia legislature provides little, if any, formal legislativehistory. See Ctr. for Individual Freedom v. Tennant, 849 F. Supp. 2d 659,668 n.6 (S.D. W. Va. 2011); Appalachian Power Co. v. Sadler, 314 F.Supp. 2d 639, 641 n.2 (S.D. W. Va. 2004).


1. The district court held that subsection (C) of the statute’sdefinition of "expressly advocating"—which defines "ex-pressly advocating" as "any communication that . . . [i]ssusceptible of no reasonable interpretation other than as anappeal to vote for or against a specific candidate," W. Va.Code § 3-8-1a(12)(C)—was fatally vague. The court there-fore severed subsection (C) from the remainder of the defi-nition. CFIF III, 849 F. Supp. 2d at 685-87.

2. The district court held that West Virginia’s inclusion ofperiodicals in its definition of "electioneering communica-tion" rendered the definition overbroad. Id. at 697. Inreaching its conclusion, the district court emphasized theWest Virginia legislature’s failure to develop a record ormake findings that supported its inclusion of print media.See id. at 694-97. Consequently, the court severed WestVirginia Code section 3-8-1a(11)’s reference to materials"published in any newspaper, magazine or other periodi-cal." Id. at 697.

3. The court determined that various exemptions to the "elec-tioneering communication" definition were constitutional.First, the court upheld a "grassroots lobbying" exemption,which provides that "electioneering communication" doesnot include "communication[s] made while the Legislatureis in session which, incidental to promoting or opposing aspecific piece of legislation pending before the Legislature,urges the audience to communicate with a member ormembers of the Legislature concerning that piece of legis-lation." W. Va. Code § 3-8-1a(11)(B)(v); CFIF III, 849 F.Supp. 2d at 700-03. Second, the court declined to addressthe merits of CFIF’s challenge to an exemption for "bonafide news account[s]," which provides:

(i) A news story, commentary or editorial dissemi-nated through the facilities of any broadcast, cable orsatellite television or radio station, newspaper, maga-zine or other periodical publication not owned or


controlled by a political party, political committee orcandidate: Provided, That a news story disseminatedthrough a medium owned or controlled by a politicalparty, political committee or candidate is neverthe-less exempt if the news is:

(I) A bona fide news account communi-cated in a publication of general circulationor through a licensed broadcasting facili-ty[.]

W. Va. Code § 3-8-1a(11)(B)(i). The court determined thatCFIF lacked standing to challenge this exemption becauseCFIF failed to demonstrate that it intended to publish newsstories or functioned as a "political party, political committeeor candidate." CFIF III, 849 F. Supp. 2d at 707. Third, thecourt upheld a provision that exempts communications by§ 501(c)(3) organizations because federal law prohibits thesegroups from engaging in express advocacy. Id. at 707-09.

4. The district court determined that the statutory scheme’stwenty-four-hour and forty-eight-hour reporting and dis-claimer requirements could survive exacting scrutiny.CFIF III, 849 F. Supp. 2d at 711-15.

5. However, the district court concluded that the reportingrequirement for electioneering communications wasambiguous insofar as it mandated disclosure of the "namesand addresses of any contributors who contributed a totalof more than one thousand dollars between the first day ofthe preceding calendar year and the disclosure date andwhose contributions were used to pay for electioneeringcommunications." W. Va. Code § 3-8-2b(b)(5) (emphasisadded); CFIF III, 849 F. Supp. 2d at 717-19. To cure theambiguity of the emphasized portion, the court restrictedthe reporting requirement to "individuals who respond toa solicitation for electioneering communications or ear-mark their contributions for such use." Id. at 719.


The district court chose not to vacate the April 2008 andOctober 2008 injunctions due to the legislature’s amend-ments, which would have allowed West Virginia to prosecutegroups for violating the enjoined portions of the statutoryscheme while the injunctions were in effect. Instead, the dis-trict court "dissolve[ed]" the injunctions, thereby prohibitingthese prosecutions. CFIF III, 849 F. Supp. 2d at 719-20.

D.

West Virginia now appeals the district court’s determina-tion that subsection (C) of the statute’s "expressly advocating"definition was vague, its decision to strike periodicals fromthe "electioneering communication" definition, and its deci-sion to apply an "earmarked funds" limiting construction tothe reporting requirement for electioneering communications.Furthermore, West Virginia contends that the district courtshould have vacated the earlier injunctions as moot ratherthan barring prosecutions for violations that occurred whenthe injunctions were in effect. CFIF cross-appeals the court’sconclusion that it lacked standing to challenge the "bona fidenews account" exemption and its determinations that the"grassroots lobbying" and § 501(c)(3) exemptions were con-stitutional. Although WVFL did not file a notice of appeal inthis case, it contends that, if we uphold the statutory scheme’s"electioneering communication" and "expressly advocating"definitions, we should strike down the reporting and dis-claimer requirements due to these provisions’ alleged vague-ness and overbreadth. We have jurisdiction pursuant to 28U.S.C. § 1291. The WVEA, the West Virginia AFL-CIO,Bastress, Workman, and Ketchum are not parties to thisappeal.

We affirm the district court’s decisions to (1) strike "news-paper, magazine or other periodical" from West Virginia’s"electioneering communication" definition; (2) uphold the"electioneering communication" definition’s exemption forgrassroots lobbying; (3) decline to consider the merits of


CFIF’s challenge to the bona fide news accounts exemptionbecause the organization lacks standing; and (4) prohibit pros-ecutions for violations that occurred while the earlier injunc-tions were in effect. However, we reverse the district court’sdecision with respect to (1) its conclusion that subsection (C)of the "expressly advocating" definition is unconstitutional;(2) its choice to uphold the "electioneering communication"definition’s § 501(c)(3) exemption; and (3) its application ofan "earmarked funds" limiting construction to the reportingrequirement for electioneering communications. BecauseWVFL did not file a notice of appeal in this case, we cannotconsider its challenge to the district court’s finding that thestatutory scheme’s twenty-four- and forty-eight-hour report-ing requirements are constitutional. We consequently affirmin part, reverse in part, and remand for further proceedingsconsistent with this opinion.

II.

A court considering a summary judgment motion mustview the facts in the light most favorable to the nonmovant.United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (percuriam). We review de novo both the district court’s decisionto grant in part and deny in part CFIF’s and WVFL’s motionsfor summary judgment and its conclusions of law. MooreBros. Co. v. Brown & Root, Inc., 207 F.3d 717, 724 (4th Cir.2000); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Withrespect to the district court’s decision to prohibit prosecutionsfor violations that occurred while the April 2008 and October2008 injunctions were in place, we review for abuse of discre-tion. See Conservation Council of N.C. v. Costanzo, 528 F.2d250, 251-52 (4th Cir. 1975).

III.

First, we consider West Virginia’s contention that the dis-trict court erred in concluding that subsection (C) of the stat-ute’s definition of "expressly advocating" is


unconstitutionally vague. Subsection (C) provides that "ex-pressly advocating" includes "any communication that . . . [i]ssusceptible of no reasonable interpretation other than as anappeal to vote for or against a specific candidate." W. Va.Code § 3-8-1a(12)(C). The statutory scheme incorporates thephrase "expressly advocating" into the definition of "indepen-dent expenditure" and does not include the phrase elsewhere.Pursuant to the statute, an "independent expenditure" is "anexpenditure . . . [e]xpressly advocating the election or defeatof a clearly identified candidate" and "[t]hat is not made inconcert or cooperation with or at the request or suggestion ofsuch candidate, his or her agents, the candidates authorizedpolitical committee or a political party committee or itsagents." W. Va. Code § 3-8-1a(15).

Relying on FEC v. Wisconsin Right to Life, Inc., (WRTLII), 551 U.S. 449 (2007), the district court determined that theSupreme Court endorsed "appeal to vote" tests—such as sub-section (C)—only within the confines of the BCRA’s "elec-tioneering communication" definition. CFIF III, 849 F. Supp.2d at 686-97. In other words, the district court held that, pur-suant to WRTL II, provisions such as subsection (C) can sur-vive vagueness challenges only when they reachcommunications that (1) are disseminated via cable, broad-cast, or satellite; (2) refer to a clearly identified candidate; (3)are disseminated within certain time periods before an elec-tion; and (4) are directed at the relevant electorate. The dis-trict court declined to fully address CFIF’s and WVFL’soverbreadth challenges because it invalidated subsection (C)on vagueness grounds. Id. at 685. For the reasons discussedbelow, we find that the district court erred in holding that sub-section (C) is vague and decline to strike down the provisionon overbreadth grounds.

Statutory provisions are unconstitutionally vague if theyfail to "give the person of ordinary intelligence a reasonableopportunity to know what is prohibited." Grayned v. City ofRockford, 408 U.S. 104, 108 (1972). When a statute "is capa-


ble of reaching expression sheltered by the First Amendment,the [vagueness] doctrine demands a greater degree of specific-ity than in other contexts." Smith v. Goguen, 415 U.S. 566,573 (1974); United States v. Sun, 278 F.3d 302, 309 (4th Cir.2002). Due to this Court’s recent decision in The Real TruthAbout Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012),CFIF’s and WVFL’s vagueness arguments cannot succeed. InReal Truth, this Court held that the federal definition of "ex-pressly advocating" is not unconstitutionally vague. Id. at 555.Per the federal definition—which appears in 11 C.F.R.§ 100.22(b)—"expressly advocating" is a communication that,

[w]hen taken as a whole and with limited referenceto external events, such as the proximity to the elec-tion, could only be interpreted by a reasonable per-son as containing advocacy of the election or defeatof one or more clearly identified candidate(s)because—

(1) The electoral portion of the communication isunmistakable, unambiguous, and suggestive of onlyone meaning; and

(2) Reasonable minds could not differ as to whetherit encourages actions to elect or defeat one or moreclearly identified candidate(s) or encourages someother kind of action.

Real Truth held that the differences between § 100.22(b) andthe WRTL II "functional equivalent" test—which specifiesthat "a court should find that an ad is the functional equivalentof express advocacy only if the ad is susceptible of no reason-able interpretation other than as an appeal to vote for oragainst a specific candidate," WRTL II, 551 U.S. at 470-71—were "not meaningful." Real Truth, 681 F.3d at 552.Because the WRTL II test and the portion of the West Virginiadefinition at issue here are identical, Real Truth’s holding


applies to this case. We therefore hold that subsection (C) isnot unconstitutionally vague.

Although CFIF and WVFL argue that this Court’s decisionin North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274(4th Cir. 2008), necessitates finding that subsection (C) isvague, the situation at issue in Leake is distinguishable fromthe circumstances in this case for the same reasons this Courtdistinguished it in Real Truth. Notably, like the provisionbefore this Court in Real Truth, the "expressly advocating"definition under review in this case is a component of WestVirginia’s "independent expenditure" definition. W. Va. Code§ 3-8-1a(15); Real Truth, 681 F.3d at 553. The Leake panelelected to cabin the North Carolina provision at issue in thatcase within the confines of the statute’s "electioneering com-munication" definition due to concerns about the provision’sbroad applicability. Leake, 525 F.3d at 283-84. Those con-cerns are not at play in this case because, as previously noted,the West Virginia legislature embedded the "expressly advo-cating" term within the "independent expenditure" definition,thereby limiting its applicability. Consequently, Leake doesnot alter our conclusion that Real Truth compels us to reversethe district court’s determination that subsection (C) is uncon-stitutionally vague.

Because the district court erred in invalidating subsection(C) on vagueness grounds, we must consider whether the pro-vision is impermissibly broad. WVFL argues in its reply briefthat subsection (C) is overbroad because it reaches beyondexpress advocacy, and CFIF adopts this contention in its brief.Real Truth again controls our decision because the federalregulatory provision at issue in that case is comparable to sub-section (C) of West Virginia Code section 3-8-1a(12). In RealTruth, this Court emphasized the Supreme Court’s CitizensUnited decision, which explained that regulators need notlimit disclosure requirements to "speech that is the functionalequivalent of express advocacy." Real Truth, 681 F.3d at 551-52 (citing Citizens United, 130 S. Ct. at 890). Because regula-


tions may extend beyond speech that is the functional equiva-lent of express advocacy and subsection (C) invokes WRTLII’s "functional equivalent" test, subsection (C) cannot beoverbroad. Therefore, CFIF and WVFL’s overbreadth argu-ment fails, and we hold that subsection (C) is constitutional.

IV.

Next, we consider the constitutionality of the West VirginiaCode’s definition of "electioneering communication." Section3-8-1a(11) defines the term as

any paid communication made by broadcast, cable orsatellite signal, or published in any newspaper, mag-azine or other periodical that:

(i) Refers to a clearly identified candidate for Gover-nor, Secretary of State, Attorney General, Treasurer,Auditor, Commissioner of Agriculture, SupremeCourt of Appeals or the Legislature;

(ii) Is publicly disseminated within:

(I) Thirty days before a primary election atwhich the nomination for office sought bythe candidate is to be determined; or

(II) Sixty days before a general or specialelection at which the office sought by thecandidate is to be filled; and

(iii) Is targeted to the relevant electorate.

CFIF challenges the definition’s inclusion of materials "pub-lished in any newspaper, magazine or other periodical."

In Citizens United, the Supreme Court specified that courtsshould apply "exacting scrutiny" to evaluate campaign


finance disclaimer and disclosure provisions, such as the"electioneering communication" definition. 130 S. Ct. at 914.This standard requires the government to show that the statutebears a "substantial relation" to a "sufficiently important"governmental interest. Id. (quoting Buckley, 424 U.S. at 64,66). CFIF alleges that the "electioneering communication"definition fails to survive exacting scrutiny for two reasons:(1) the government has no interest that justifies the statute’sapplication to non-broadcast media, and (2) even if the gov-ernment could demonstrate a sufficiently important interest,the legislature’s failure to empirically justify the statute’sapplication to periodicals renders it overbroad and prevents itfrom bearing a substantial relation to West Virginia’s statedinterests. As we explain below, the district court correctlyagreed with CFIF’s second contention, so we affirm the dis-trict court’s decision to sever West Virginia Code section 3-8-1a(11)’s reference to materials "published in any newspaper,magazine or other periodical."

Governmental Interest

We first address CFIF’s argument that West Virginia hasno sufficiently important governmental interest that justifiesthe statutory scheme’s application to non-broadcast media. InBuckley v. Valeo, the Supreme Court highlighted three stateinterests that can justify disclosure requirements: (1) "provid[-ing] the electorate with information" about the source ofcampaign-related spending, (2) "deter[ring] actual corruptionand avoid[ing] the appearance of corruption," and (3) "gather-ing the data necessary to detect violations of . . . contributionlimitations." 424 U.S. at 66-67. The second inter-est—preventing corruption and the appearance of corrup-tion—does not apply to the case at hand because"electioneering communication" does not include activity bycandidates or their committees. See W. Va. Code § 3-8-1a(11)(B)(ii). "Electioneering communication" thereforeincludes only materials that third parties finance, and theSupreme Court has held that third-party expenditures "do not


give rise to corruption or the appearance of corruption." Citi-zens United, 130 S. Ct. at 909; see also Leake, 525 F.3d at292 (explaining that "independent expenditures are madewithout candidate consultation, rendering it unlikely that suchexpenditures would be made in exchange for ‘improper com-mitments from the candidate’" (quoting Buckley, 424 U.S. at47)). The third interest—gathering data to enforce more sub-stantive electioneering restrictions—is also inappositebecause states cannot limit contributions collected to fundindependent electioneering communications or prohibit suchcommunications. See Citizens United, 130 S. Ct. at 913. Con-sequently, West Virginia cannot use the second or third Buck-ley interests to justify its "electioneering communication"definition.

However, West Virginia can rely on the first interest: pro-viding the electorate with election-related information.Requiring organizations and individuals who engage in elec-tioneering communication to file certain reports "alert[s] thevoter to the interests to which a candidate is most likely to beresponsive and thus facilitate[s] predictions of future perfor-mance in office." Buckley, 424 U.S. at 67. Furthermore, as theSupreme Court recognized in McConnell v. FEC, organiza-tions such as CFIF often have "dubious and misleadingnames," and "disclosure provisions require these organiza-tions to reveal their identities so that the public is able to iden-tify the source of the funding behind . . . advertisementsinfluencing certain elections." 540 U.S. at 196-97. DespiteCFIF’s argument that the public’s informational interestextends only to broadcast media, there is no reason why thepublic would not have a similar interest in knowing the sourceof campaign-related spending when it takes the form of printcommunication. Therefore, West Virginia can point to itsinterest in informing the public to justify including printmedia in its "electioneering communication" definition.

Substantial Relation

Next, West Virginia must be able to demonstrate thatincluding materials "published in any newspaper, magazine or


other periodical" in its "electioneering communication" defi-nition bears a substantial relation to the state’s interest in pro-viding information. The district court concluded that WestVirginia failed to make this showing because the state legisla-ture neglected to make findings regarding the need to regulatenon-targeted print communications, which rendered the "elec-tioneering communication" definition fatally overbroad. CFIFIII, 849 F. Supp. 2d at 696-97. In Turner Broadcasting Sys-tem, Inc. v. FCC, the Supreme Court explained that, "[e]venin the realm of First Amendment questions," legislatures"must base [their] conclusions on substantial evidence." 520U.S. 180, 196 (1997). The Turner Court pointed out thatcourts must defer to legislative findings because legislaturesare "far better equipped than the judiciary to amass and evalu-ate the vast amounts of data bearing upon legislative ques-tions." Id. at 195 (quoting Turner Broad. Sys., Inc. v. FCC,512 U.S. 622, 665-66 (1994)) (internal quotation marks omit-ted). In another opinion, the Supreme Court clarified that the"quantum of empirical evidence" required should "vary up ordown with the novelty and plausibility of the justification" forthe regulation. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,391 (2000). Because West Virginia has raised a well-acceptedrationale for its electioneering communication defini-tion—informing the electorate—its evidentiary burden falls atthe bottom of this spectrum.

Nevertheless, we find that the district court correctly deter-mined that West Virginia failed to demonstrate a substantialrelation between its interest in informing the electorate and itsdecision to include periodicals—but not other non-broadcastmaterials—in its "electioneering communication" definition.However, recognizing that we may "affirm the district courton any ground that would support the judgment in favor of theparty prevailing below," Everett v. Pitt Cnty. Bd. of Educ.,678 F.3d 281, 291 (4th Cir. 2012) (quoting Crosby v. City ofGastonia, 635 F.3d 634, 643 n.10 (4th Cir. 2011)) (internalquotation marks omitted), we reach our conclusion using adifferent logical path than the district court. The district court


based its ruling on the "conclusory" and "anecdotal" nature ofthe affidavits that West Virginia used to establish the need toregulate periodicals, stating that "[a]lthough several of theaffidavits illustrate the potential of non-broadcast media as aneffective electioneering tool, none of them presents anythingmore than anecdotal claims." CFIF III, 849 F. Supp. 2d at694. However, in Nixon v. Shrink Missouri Government PAC,the Supreme Court credited an affidavit that noted that "largecontributions have ‘the real potential to buy votes’" and foundthat the quoted language and several newspaper articles pro-vided sufficient justification for the campaign finance law atissue in that case. 528 U.S. at 393-94. In fact, the SupremeCourt noted that the case did not even "present a close call."Id. at 393. In light of Nixon, the district court mistakenly dis-counted affidavits supporting the inclusion of periodicals inthe "electioneering communication" definition.

When combined with other materials in the record, the affi-davits discussed above provide ample support for includingnewspapers, magazines, and other periodicals in West Virgin-ia’s "electioneering communication" definition. The WestVirginia Code specifies that the West Virginia legislatureenacted the campaign finance regime to "serve[ ] a substantialgovernmental interest in informing the electorate." W. VaCode. § 3-8-1(a)(5). Furthermore, the statute explicitly men-tions the legislature’s fear that "[f]ailing to regulate non-broadcast media messages would permit those desiring toinfluence elections to avoid the principles and policies that areembodied in existing state law." Id. § 3-8-1(a)(7). The affida-vits explain that including non-broadcast media—such asperiodicals—in the "electioneering communication" definitionaddresses these concerns. David H. Gold, the president of adirect mailing company, attested that "[t]he use of direct mailand other forms of non-broadcast media is and has beenincreasing" and that limiting disclosure rules to broadcastmedia causes "entities seeking to hide the source of theirfunds [to] shift their expenditures into direct mail and othercost effective non-broadcast media." In fact, as Pamela M.


Van Horn—the executive director of the West Virginia Dem-ocratic Legislative Council—highlighted in her affidavit,CFIF itself shifted its spending from broadcast media tonewspaper advertisements so it did not have to comply withWest Virginia’s reporting requirements. These affidavitsclearly support the informational purpose that the West Vir-ginia legislature enunciated in the statutory text, especially inlight of our duty to defer to legislative judgments.

In addition to downplaying the relevance of these affida-vits, the district court also discredited a spreadsheet that Nich-olas Casey—the chairman of the West Virginia StateDemocratic Party—compiled and submitted. The spreadsheetdetails third-party spending during select 2006 and 2008 WestVirginia elections. Because the spreadsheet specifies that only"a minuscule 0.4% of third-party spending" financed"print/newspaper" communications, the district court deter-mined that (1) including periodicals in the "electioneeringcommunication" definition did not bear a substantial relationto the state’s interests and (2) the law is "severely underinclu-sive" because it neglects to include other, more prevalentforms of print media, such as direct mail. CFIF III, 849 F.Supp. 2d at 695. However, independent groups’ currenteschewal of periodical advertising says nothing regarding thelegislature’s fear that these organizations will shift frombroadcast to print media to avoid the reporting and disclaimerrequirements, thereby preventing the electorate from receiv-ing valuable information about the source of campaign-relatedspending. Consequently, regardless of how little electioneer-ing communication appears in periodicals, regulating thisform of communication furthers the state’s interest in inform-ing the electorate.

The district court’s uneasiness about the "electioneeringcommunication" definition’s underinclusivity more closelyapproximates our concern with that provision. We recognizethe Supreme Court’s admonition that "a statute is not invalidunder the Constitution because it might have gone farther than


it did, . . . a legislature need not strike at all evils at the sametime, and . . . reform may take one step at a time." Buckley,424 U.S. at 105 (citations omitted) (internal quotation marksomitted). However, a state legislature must provide somerationale for electing to proceed one step at a time. See Tur-ner, 520 U.S. at 196. Although the affidavits that West Vir-ginia submitted sufficiently support its decision to regulateperiodicals and other non-broadcast media, they do not justifythe legislature’s decision to regulate periodicals to the exclu-sion of other non-broadcast media, such as direct mailings.

We recognize that the West Virginia legislature likely elim-inated direct mailings, telephone banks, and billboard adver-tising from its "electioneering communication" definition tocomply with the district court’s October 2008 decision—adecision we now see as erroneous because it found that WestVirginia could not regulate non-broadcast media as a generalmatter. See CFIF II, 613 F. Supp. 2d at 800-01. However, wemust "err on the side of protecting political speech rather thansuppressing it," WRTL II, 551 U.S. at 457, and limiting thecampaign finance regime’s applicability to only broadcastmedia causes it to burden fewer election-related communica-tions. We consequently affirm the district court’s decision tostrike "newspaper, magazine or other periodical" from WestVirginia’s "electioneering communication" definition.

V.

Next, we consider CFIF’s argument that the district courterred in its decisions regarding three exemptions to West Vir-ginia’s "electioneering communication" definition. For thereasons we outline below, we find that the district court cor-rectly upheld the definition’s "grassroots lobbying" exemptionand properly determined that CFIF lacked standing to chal-lenge the "bona fide news account" exemption. However, weconclude that the district court erred in finding that the§ 501(c)(3) exemption could survive constitutional scrutiny.


A.

CFIF raises two challenges to West Virginia’s "grassrootslobbying" exemption, which specifies that "electioneeringcommunication" does not include "communication[s] madewhile the Legislature is in session which, incidental to pro-moting or opposing a specific piece of legislation pendingbefore the legislature, urges the audience to communicatewith a member or members of the Legislature concerning thatpiece of legislation." W. Va. Code § 3-8-1a(11)(B)(v). CFIFargues (1) that the phrase "promoting or opposing" and theword "incidental" are vague and (2) that the provision dis-criminates based on content and viewpoint. However, as dis-cussed below, CFIF’s contentions lack merit.

Vagueness Challenge

As noted above, statutes are unconstitutionally vague whenthey fail to "give the person of ordinary intelligence a reason-able opportunity to know what is prohibited." Grayned, 408U.S. at 108. CFIF relies upon this Court’s decision in NorthCarolina Right to Life, Inc. v. Bartlett to support its vaguenessargument. 168 F.3d 705 (4th Cir. 1999). The relevant portionof the statute at issue in Bartlett defined a political committeeas a group whose "primary or incidental purpose . . . is to sup-port or oppose any candidate or to influence or attempt toinfluence the result of an election." Id. at 712. The plaintiff inthat case similarly argued that the provision was unconstitu-tionally vague, and this Court agreed. Id. at 713. However,differences between the circumstances at issue in Bartlett andthe situation at hand counsel against adopting Bartlett’s rea-soning in this case.

As the district court correctly pointed out, the North Caro-lina statute at issue in Bartlett and the statute under consider-ation in this case use the word "incidental" in differentmanners. In Bartlett, this Court implied that "incidental"could mean "accidental" or "unplanned" in the context of the


North Carolina statute when it explained that the word "ex-pressly sweeps within [the statute’s] ambit those groups thatonly incidentally engage in express advocacy." 168 F.3d at712; see also The American Heritage College Dictionary 700(4th ed. 2002) (defining "incidental" as "[o]ccurring or likelyto occur as an unpredictable or minor accompaniment"). Thisreading of the statute essentially requires organizations seek-ing to comply with its requirements to discern when theircommunications unintentionally promote or oppose a candi-date or accidentally influence an election, which, understand-ably, a person of ordinary intelligence would find difficult. Bycontrast, the district court properly recognized that the WestVirginia statute’s language—"incidental to promoting oropposing a specific piece of legislation"—clearly invokes thephrase "incident to" despite its inapt use of the word "inciden-tal." CFIF III, 849 F. Supp. 2d at 701. Black’s Law Dictio-nary defines "incident" as "[d]ependent upon, subordinate to,arising out of, or otherwise connected with." Black’s LawDictionary 830 (9th ed. 2009). In light of the wording of WestVirginia’s statute, it is clear that the legislature intended thismeaning rather than the definition that this Court held to bevague in Bartlett. Consequently, the exemption’s incorpora-tion of the word "incidental" does not prevent a person ofordinary intelligence from understanding its import.

Next, CFIF alleges that the phrase "promoting or opposing"is impermissibly vague because it "turn[s] on the speaker’sperceived intent" and requires speculation regarding the "po-tential effect of the speech on listeners." To support its argu-ment, CFIF relies on Buckley v. Valeo, which held that theD.C. Circuit failed to cure an election statute’s vaguenesswhen that circuit construed the statute to apply only to speech"advocating the election or defeat of" a candidate. 424 U.S.at 42-43. In Buckley, the Supreme Court determined that theD.C. Circuit’s clarification remained vague because it consti-tuted an impermissible "intent-and-effect" test that put speak-ers "at the mercy of the varied understanding of [their] hearers


and consequently of whatever inference may be drawn as to[their] intent and meaning." Id.

The district court countered CFIF’s argument by citingfootnote 64 of McConnell v. FEC, which explicitly held thatthe words "promote" and "oppose" were not unconstitution-ally vague. 540 U.S. at 170 n.64. In McConnell, the SupremeCourt held that campaign finance statutes featuring the words"promote" and "oppose" "give the person of ordinary intelli-gence a reasonable opportunity to know what is prohibited."Id. Although the Court recognized that "[t]his is particularlythe case here, since actions taken by political parties are pre-sumed to be in connection with election campaigns," it did notlimit its holding to situations involving political parties. Id.

Despite CFIF’s arguments that this Court’s decision inLeake "flatly rejected the notion that footnote 64 in McCon-nell applies to speech beyond that by political parties," Leakemerely held that a statutory scheme incorporating the phrase"support or oppose" was unconstitutionally vague due to addi-tional language that does not appear in West Virginia’s stat-ute. 525 F.3d at 280-81, 285-86 (concluding that the statutewas vague because it "determine[d] whether speech [was]regulable based on how a ‘reasonable person’ interpret[ed] thespeech’s ‘essential nature’ in light of four ‘contextual fac-tors’"). Additionally, WRTL II does not require us to strikedown the exemption because—contrary to CFIF’s asser-tions—that case has no effect on McConnell’s conclusionregarding "promote and oppose"; WRTL II simply reiteratedthat intent-and-effect tests were impermissible while passingno judgment regarding McConnell’s vagueness holding. 551U.S. at 465. Consequently, pursuant to McConnell, the words"promote" and "oppose" do not render the grassroots lobbyingexemption vague, allowing the exemption to survive CFIF’svagueness challenge.5

5CFIF also argues that the phrase "urges the audience" is vague in itsreply brief. However, in its renewed motion for summary judgment, CFIF


Content and Viewpoint Discrimination Challenge

In addition to arguing that the grassroots lobbying exemp-tion is impermissibly vague, CFIF contends that the provisionunconstitutionally discriminates based on communications’content and viewpoint. In particular, CFIF points out that theprovision (1) exempts speech that occurs while the legislatureis in session but burdens speech that takes place at othertimes, (2) exempts communications that concern specific,pending legislation but burdens speech regarding other legis-lation, (3) exempts speech urging contact with legislators butburdens communications that encourage reaching out to non-incumbents or executive branch officials, and (4) exemptscommunications that support or oppose legislation but bur-dens speech that requests other action, such as recommendingthat a nominee be confirmed. Although the Supreme Courttypically applies strict scrutiny to content-based speechrestrictions, see Brown v. Entm’t Merchants Ass’n, 131 S. Ct.2729, 2738 (2011), disclosure and disclaimer requirementsare subject to exacting scrutiny. Citizens United, 130 S. Ct. at914. Therefore, the grassroots lobbying exemption is constitu-tionally permissible if, in its absence, the "electioneeringcommunication" definition would not bear a "substantial rela-tion" to a "sufficiently important" governmental interest. Id.For the reasons we outline below, the exemption survivesexacting scrutiny.

As explained above, the only sufficiently important interestat stake in this case is informing the electorate about thesource of campaign-related spending. Thus, the "electioneer-ing communication" definition must bear a substantial relation

failed to raise this vagueness challenge, and the district court did notaddress it. We therefore decline to discuss this argument. See Lovelace v.Lee, 472 F.3d 174, 202 n.10 (4th Cir. 2006); see also 10A Charles AlanWright et al., Federal Practice & Procedure § 2716 (3d ed. 1998)(explaining that a party appealing a denial of its motion for summary judg-ment cannot "advance new theories or raise new issues in order to securea reversal of the lower court’s determination").


to that interest to withstand exacting scrutiny; in other words,we will uphold the grassroots lobbying exemption if the com-munications that it encompasses do not bear a substantial rela-tion to providing the public with information. The districtcourt reasoned that communications that relate to pending leg-islation and take place while the legislature is in session aremore likely to be true issue advocacy—the regulation ofwhich the Supreme Court has been loath to endorse—ratherthan express advocacy masquerading as issue advocacy.WRTL II, 551 U.S. at 455-57; CFIF III, 849 F. Supp. 2d at703. The court therefore held that the exemption was neces-sary because the statutory scheme "imposes reporting require-ments on communications more likely to be ‘sham issue ads’and because the exemption spares from reporting require-ments those communications least likely to be ‘sham issueads.’" Id.

Although West Virginia offers weak evidentiary supportfor its argument that the legislature crafted this exemption toavoid burdening pure issue advocacy, considering the type ofspeech the legislature chose to exempt makes the legislature’saim abundantly clear. Furthermore, the statute itself recog-nizes the importance of distinguishing issue advocacy fromexpress advocacy by explaining that "[d]isclosure by personsand entities that make expenditures for communications thatexpressly advocate the election or defeat of clearly identifiedcandidates" is a "reasonable and minimally restrictive methodof furthering First Amendment values by public exposure."W. Va. Code § 3-8-1(a)(6). In all likelihood, if West Virginiahad not included this exemption, CFIF would have challengedthe regulatory scheme as overbroad due to its applicability toissue advocacy. Therefore, the district court correctly foundthat the grassroots lobbying exemption allows the "election-eering communication" definition to survive exacting scru-tiny, and the exemption does not impermissibly discriminateon the basis of communications’ content and viewpoint.


B.

Next, CFIF alleges that the statute’s exemption for newsaccounts is unconstitutionally vague due to its inclusion of thephrase "bona fide news account." Under the exemption, "bonafide news account[s]" that a speaker "disseminate[s] througha medium owned or controlled by a political party, politicalcommittee or candidate" are not electioneering communica-tions. W. Va. § 3-8-1a(11)(B)(i). The district court held thatCFIF lacked standing to challenge this provision becauseCFIF (1) does not publish or intend to publish news storiesand (2) does not function as a political party, political com-mittee, or candidate. CFIF III, 849 F. Supp. 2d at 706-07.Although CFIF correctly points out that it need not be a politi-cal party, political committee, or candidate to disseminate anews story through a medium that such an entity owns or con-trols, it has never averred that it has published a news storythrough one of these media outlets or that it plans to do so.Furthermore, contrary to CFIF’s assertions, the fact that CFIFis "an entity subject to West Virginia’s campaign financelaws" does not give it carte blanche to challenge laws that areinapplicable to its activities. Members of City Council v. Tax-payers for Vincent, 466 U.S. 789, 797 (1984) (explaining thatthe doctrine allowing facial challenges to overbroad statutes"did not create any exception from the general rule that con-stitutional adjudication requires a review of the application ofa statute to the conduct of the party before the Court"). There-fore, the district court properly held that CFIF lacks standingto challenge the "bona fide news account" exemption.

C.

Finally, CFIF contends that the statute’s exemption for"communication[s] paid for by any organization operatingunder § 501(c)(3) of the Internal Revenue Code" unconstitu-tionally discriminates against § 501(c)(4) organizations suchas CFIF. W. Va. Code § 3-8-1a(11)(B)(iv). Once again, weapply exacting scrutiny to determine if the exemption is con-


stitutionally permissible, Citizens United, 130 S. Ct. at 914,and, as explained above, the only sufficiently important gov-ernmental interest at stake in this case is providing the elector-ate with information about the source of campaign-relatedspending. Consequently, because we are evaluating anexemption to the campaign finance regime, West Virginiamust demonstrate that regulating communications that fallwithin the exemption does not bear a substantial relation tothis governmental interest. For the reasons we outline below,West Virginia has failed to make this showing.

The Internal Revenue Code prohibits § 501(c)(3) organiza-tions from "participat[ing] in, or interven[ing] in (includingthe publishing or distributing of statements), any politicalcampaign on behalf of (or in opposition to) any candidate forpublic office." 26 U.S.C. § 501(c)(3). As noted above, WestVirginia exempts these organizations from complying withreporting and disclaimer requirements that other organizationsengaging in electioneering communication must satisfy. WestVirginia’s § 501(c)(3) exemption is identical to a since-repealed regulatory provision that the FEC promulgated toenforce the BCRA. 11 C.F.R. § 100.29(c)(6) (repealed Jan.19, 2006). In light the fact that the Internal Revenue Codeprohibits § 501(c)(3) organizations from engaging in expressadvocacy, the FEC noted that commentators had concludedthat the "‘BCRA’s application to 501(c)(3)s [would] prohib-it[ ] activity that is already forbidden,’ and the activities theInternal Revenue Service permits 501(c)(3) organizations toengage in are activities ‘that BCRA was not intended toreach.’" 67 Fed. Reg. 65,190-01, 65,199 (Oct. 23, 2002)(alteration in original). The district court relied on this logicwhen upholding the West Virginia exemption. See CFIF III,849 F. Supp. 2d at 707-08.

However, the district court erred in finding that the§ 501(c)(3) exemption could withstand exacting scrutiny forat least two reasons. First, exemptions such as the one at issuein this case assume that campaign finance laws and


§ 501(c)(3) are coextensive in terms of the electioneeringcommunication that they prohibit, which may not be the case.See Shays v. FEC, 337 F. Supp. 2d 28, 126-28 (D.D.C. 2004).Therefore, by exempting communications by § 501(c)(3)organizations from the definition of "electioneering communi-cation," West Virginia likely deprived the electorate of infor-mation about these organizations’ election-related activities.Second, the district court recognized that "the West VirginiaLegislature has not set forth comprehensive findings forenacting such an exemption" and implied that the legislaturemust have relied on the logic behind the defunct FEC regula-tion. See CFIF III, 849 F. Supp. 2d at 708. The FEC rescindedthis regulation in 2006 after a district court held that theexception lacked "reasoned analysis" to support it. See Shays,337 F. Supp. 2d at 127-28. As discussed in detail above, legis-latures must base their conclusions on substantial evidence.See Turner, 520 U.S. at 196. In light of the federal regula-tion’s history and the lack of other support for the exemption,we are unable to find that the "electioneering communication"definition bears a substantial relation to the government’sinterest in informing the electorate with the § 501(c)(3)exemption in place.

CFIF contends that, if any of the exemptions is constitu-tionally impermissible, we must invalidate the entire regula-tory scheme affecting electioneering communications becausestriking the exemption would burden more speech than thelegislature intended to restrict. Although CFIF correctly sug-gests that "when a section of a statute is declared void, thestatute cannot be given effect as though the legislature had notenacted the conditions limiting its operation," Quinn v.Comm’r, 524 F.2d 617, 626 (7th Cir. 1975), this drastic rem-edy is unnecessary in this case. In McCorkle v. United States,this Court explained that, "[u]nless it is evident that the legis-lature would not have enacted those provisions which arewithin its power, independently of that which is not, theinvalid part may be dropped if what is left is fully operativeas a law." 559 F.2d 1258, 1261 (4th Cir. 1977). It is hard to


believe that West Virginia would have foregone regulatingelectioneering communications if it had to subject § 501(c)(3)organizations to the statutory requirements. We thereforeinvalidate the § 501(c)(3) exemption while leaving the rest ofthe "electioneering communication" definition intact.

VI.

In addition to challenging the definitional portions of WestVirginia’s campaign finance laws, CFIF also challenges oneof the statutory scheme’s substantive requirements. In rele-vant part, the West Virginia Code requires individuals whoengage in electioneering communication to comply with thefollowing reporting requirements:

1. Every person who spends a total of $5,000 or more duringany calendar year on electioneering communication mustfile reports with West Virginia’s secretary of state withintwenty-four hours of the "disclosure date," which is thedate when the individual spends $5,000 on electioneeringcommunication in a calendar year. Individuals must filethese reports each time they spend $5,000. W. Va. Code§§ 3-8-1a(9), 3-8-2b(a)(1).

2. Every person who spends a total of $1,000 or more dur-ing the two weeks immediately preceding an electionmust file a report with West Virginia’s secretary of state.Individuals must file these reports within twenty-fourhours of the "disclosure date," which West Virginiadefines in the same manner for both electioneering com-munication reporting requirements. Id. §§ 3-8-1a(9), 3-8-2b(a)(2).

West Virginia also requires electioneering communications tofeature certain disclaimers. The disclaimers must (1) clearlyindicate that a candidate or candidate’s committee did notauthorize the communication and (2) clearly identify the per-son making the expenditure. Id. § 3-8-2b(e). CFIF’s challenge


focuses on the reporting requirements for electioneering com-munications rather than the disclaimer requirements.

CFIF specifically contends that West Virginia Code section3-8-2b(b)(5) is ambiguous. That provision mandates disclo-sure of the "names and addresses of any contributors whocontributed a total of more than one thousand dollars betweenthe first day of the preceding calendar year and the disclosuredate whose contributions were used to pay for electioneeringcommunications" but provides no clear guide for determiningwhen an organization "used" a contribution "to pay for elec-tioneering communications." See W. Va. Code § 3-8-2b(b)(5).In light of this alleged ambiguity, CFIF argues that the provi-sion requires cautious organizations to disclose the names andaddresses of all contributors who donate more than $1,000within the applicable timeframe, even when they contributedto the organization’s general treasury. CFIF then maintainsthat requiring organizations to file reports regarding their gen-eral treasury contributions does not serve West Virginia’sinterest in informing the electorate, precluding the reportingrequirement from surviving exacting scrutiny. West Virginia,in turn, asserts that section 3-8-2b(b)(5) is not ambiguous andthat the provision can survive exacting scrutiny even if weaccept CFIF’s broad interpretation.

Like all campaign finance-related disclosure requirements,West Virginia Code section 3-8-2b(b)(5) is subject to exactingscrutiny. Citizens United, 130 S. Ct. at 914. As previouslynoted, this standard requires regulatory provisions to bear a"substantial relation" to a "sufficiently important" governmen-tal interest. Id. (quoting Buckley, 424 U.S. at 64, 66). For thereasons we outline above, the only governmental interest atstake in this case is West Virginia’s interest in providing theelectorate with information about the source of campaign-related spending. Consequently, West Virginia Code section3-8-2b(b)(5) must bear a substantial relation to this interest topass constitutional muster.


The district court agreed with CFIF’s contention that WestVirginia code section 3-8-2b(b)(5)’s ambiguity prevented itfrom surviving exacting scrutiny. The court determined thatcompelling expansive disclosure of treasury contributionswould result in a "flood of information" about donors whomay not have directly financed electioneering communica-tions. The court reasoned that, rather than furthering WestVirginia’s interest in informing the electorate, providinginformation about corporate treasury donations could hinderWest Virginia’s goal by inundating the public with marginallyrelevant information. The district court also feared that abroad disclosure requirement would be so administrativelyonerous for organizations such as CFIF that it would discour-age them from speaking at all. To avoid overwhelming thepublic with information and unduly burdening groups whoengage in electioneering communication, the district courtrestricted the reporting requirement to contributions from "in-dividuals who respond to a solicitation for electioneeringcommunications or earmark their contributions for such use,"a solution that it drew from an FEC regulation. CFIF III, 849F. Supp. 2d at 717-19 (citing 72 Fed. Reg. 72,899, 72,910(Dec. 26, 2007)). As discussed below, we find that the courterred in determining that West Virginia code section 3-8-2b(b)(5) could not survive exacting scrutiny and in circum-scribing its scope via the "earmarked funds" limiting con-struction.

To combat CFIF’s argument that West Virginia code sec-tion 3-8-2b(b)(5) is unconstitutional, West Virginia points toMcConnell, in which the Supreme Court upheld a similar stat-ute that imposed reporting requirements on "[e]very personwho makes a disbursement for the direct costs of producingand airing electioneering communications." 2 U.S.C.§ 434(f)(1); McConnell, 540 U.S. at 196. Specifically, theMcConnell Court found that the state interests that Buckleyenumerated—including providing the public with informa-tion—"amply support[ed]" imposing reporting requirementson organizations that engaged in electioneering communica-


tion. McConnell, 540 U.S. at 196. As the below analysis illus-trates, we find that McConnell controls this case andnecessitates reversing the district court’s conclusion that WestVirginia’s electioneering communication reporting require-ments cannot survive exacting scrutiny.

At the time the Supreme Court decided McConnell, theBCRA barred corporations from using general treasury fundsto finance electioneering communications and required themto establish a "separate segregated fund" for such expendi-tures. 2 U.S.C. § 441b(b)(2), invalidated by Citizens United,130 S. Ct. 876; McConnell, 540 U.S. at 195 & n.79. Conse-quently, when the Supreme Court decided McConnell,§ 434(f)(1) could not suffer from the same purported ambigu-ity that allegedly prevents West Virginia Code section 3-8-2b(b)(5) from surviving exacting scrutiny, even though aver-age individuals could just as easily interpret § 434(f)(1) toencompass general treasury donations absent the "separatesegregated fund" requirement. However, in Citizens United,the Supreme Court ruled that federal law’s ban on using cor-porate treasury funds to engage in express advocacy wasunconstitutional while simultaneously approving of McCon-nell’s conclusion that 2 U.S.C. § 434(f)(1) was facially valid.See Citizens United, 130 S. Ct. at 913-14. Citizens Unitedtherefore demonstrates that the Supreme Court’s conclusionregarding § 434(f)(1)’s constitutionality was not tied to theprohibition regarding corporate treasury funds. Accordingly,even if we assume for the sake of argument that section 3-8-2b(b)(5) is ambiguous, McConnell compels us to find that theprovision is constitutional. We therefore reverse the districtcourt’s conclusion that section 3-8-2b(b)(5) cannot surviveexacting scrutiny and its decision to impose an "earmarkedfunds" limiting construction to cure the provision’s allegedunconstitutionality.


VII.

Like CFIF, WVFL also raises certain challenges to the stat-utory scheme’s substantive requirements. Specifically, WVFLcontends in its reply brief that the electioneering communica-tion reporting and disclaimer requirements described aboveand the similar reporting and disclaimer requirements forgroups that make independent expenditures6 are "patentlyunreasonable" and "severely burden First Amendment rights."However, we cannot consider this issue because WVFL didnot file an appeal in this case. See Fed. R. App. P. 4(a)(3);Thurston v. United States, 810 F.2d 438, 447 (4th Cir. 1987).The district court’s conclusion that the reporting and dis-claimer requirements are constitutional therefore remainsundisturbed. See CFIF III, 849 F. Supp. 2d at 711-15.

6Organizations that make independent expenditures must comply withthe following requirements:

1. A person who makes independent expenditures totaling more than$1,000 during a calendar year must file a report with West Virginia’ssecretary of state. W. Va. Code § 3-8-2(b)(1).

2. Any person who makes or contracts to make independent expendituresaggregating $10,000 or more at any time before an election must filea report with West Virginia’s secretary of state within forty-eighthours. Id. § 3-8-2(d)(1). Thereafter, the person must file an additionalreport for each aggregate $10,000 he or she spends within forty-eighthours of the expenditure. Id. § 3-8-2(d)(2).

3. Any person who makes or contracts to make independent expenditureswithin the two weeks before an election aggregating either $1,000 (formulti-county or statewide elections) or $500 (for single-county ormunicipal elections) must file a report describing the expenditure withWest Virginia’s secretary of state within twenty-four hours. Id. § 3-8-2(c)(1). The person must file an additional report for each aggregate$1,000 or $500 he or she spends within twenty-four hours of the expen-diture. Id. § 3-8-2(c)(2).

Finally, West Virginia imposes the same disclaimer requirements on bothindependent expenditures and electioneering communications. As notedabove, these disclaimers must (1) clearly indicate that a candidate or can-didate’s committee did not authorize the communication and (2) clearlyidentify the person making the expenditure. Id. §§ 3-8-2(e), 3-8-2b(e).


VIII.

Finally, West Virginia contends that the district courtshould have vacated as moot its earlier injunctions becauseWest Virginia had repealed the statutory provisions that weresubject to the injunctions. Instead of vacating the injunctions,the court reiterated the decision it made when it dissolved theApril 2008 injunction: "‘dissolution of this court’s prelimi-nary injunction order . . . does not mean that either the newor old versions of West Virginia’s Election Code may beapplied to violations that are alleged to have occurred prior to’the date of dissolution." CFIF III, 849 F. Supp. 2d at 719-20(alteration in original) (quoting Ctr. for Individual Freedom,Inc. v. Ireland, No. 1:08-00190, 2008 WL 4452659, at *2 n.2(S.D. W. Va. Sept. 29, 2008)). Hence, under the districtcourt’s ruling, West Virginia cannot punish offenders for vio-lating the provisions that were subject to the injunctions whilethe injunctions were in effect.

Under West Virginia law, the state can enforce a repealedlaw after the repeal becomes effective as long as the offenseoccurred while the statute was in effect. W. Va. Code § 2-2-8. Therefore, if we vacate the injunctions as moot, West Vir-ginia will have the power to punish organizations for earlierviolations of the statute. In Jacobus v. Alaska, on which CFIFrelies, the Ninth Circuit explained that, "[d]espite supersedingevents, an issue is not moot if there are present effects that arelegally significant." 338 F.3d 1095, 1104 (9th Cir. 2003). TheNinth Circuit found that the plaintiffs’ claims were not mootbecause the state was "likely" to prosecute, citing a letter fromthe relevant regulatory body reserving the right to prosecutepast violations. Jacobus, 338 F.3d at 1104.

In this case, West Virginia’s secretary of state attested thather "office will not seek to enforce those provisions of saidArticles that have been repealed." CFIF relies primarily on astatement that another official made during a radio broadcastin 2008 and an election law complaint that West Virginia’s


attorney general filed over three years ago to support its argu-ment. We admit that this evidence does not overwhelminglydemonstrate that the repealed provisions remain "legally sig-nificant," especially in light of the secretary of state’s affida-vit. However, as discussed above, we review the districtcourt’s decision regarding the preliminary injunction forabuse of discretion. See Conservation Council of N.C., 528F.2d at 251-52. Despite the weakness of the evidence in favorof CFIF’s argument, we decline to go so far as to find that thedistrict court abused its discretion when it decided to dissolvethe injunctions rather than vacating them as moot. We there-fore affirm the district court’s decision to prohibit West Vir-ginia from prosecuting individuals who violated the enjoinedcampaign finance provisions while the injunctions were ineffect.

IX.

For the foregoing reasons, we affirm in part, reverse in part,and remand for further proceedings consistent with this opin-ion.

AFFIRMED IN PART,REVERSED IN PART,

AND REMANDED


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FOR THE FOURTH CIRCUIT(AFL-CIO), Robert M. Bastress, Jr., Margaret L. Workman, and Menis E. Ketchum...

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